Richard Benyon (Shadow Minister, Environment, Food & Rural Affairs; Newbury, Conservative)

I beg to move amendment 18, in clause 141, page 96, line 2, at end insert—

‘(3A) It is a defence for a person who is charged with an offence under section 139 to show that that person took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.’.

It seems at times that we are coming at the Bill from different directions. I do not apologise for that because this is all about getting the balance right. I have been persuaded by many arguments made by some of the organisations lobbying us—both greens and those more concerned with socio-economic factors, which shows the nature of the Bill; we have to ensure that we get the balance right.

In moving the amendment, I hope to debate whether it is appropriate for a breach of a byelaw or order made on an MCZ to be a strict liability offence. Offences of strict liability are those crimes that do not require awareness of one or more elements of the guilty act; therefore, to be convicted, the defendant need not have intended to commit the offence or known that what they were doing was an offence. As the Bill stands, MCZs will clearly have an impact on navigation. They will not necessarily be marked with physical aids, as we discussed earlier this week, so there will not by any buoys or markers on the sea and perhaps not a recording on the relevant navigational charts. In the absence of such demarcation, it seems short-sighted not to include a defence for a person who takes all reasonable precautions and exercises all due diligence to avoid committing the offence. The language reflects that used in clause 104 on marine licensing. Proposed new clause 141(3A) does not need to apply to clause 140 because that relates only to acts committed “intentionally or recklessly”.

The longer I look at the clause, the more concerned I become about the sea-fishing defence in clause 141(4)(a)(i). I know, Mr. Pope, that you do not want me to start a debate that belongs to a later amendment, but this is important. It seems incongruous to whack a yacht or a ship that inadvertently breaks a byelaw in an MCZ with the full force of the law, regardless of it having done all in its power to avoid committing the offence, while those who are fishing and may not have taken reasonable steps to avoid damage, appear to have an instant defence. That is inconsistent. I firmly believe that the majority of fishermen will do all that they can to avoid the offence, but there may be one or two, and they might not be our own fishermen, who come into our waters and damage an MCZ. It is important to look at these matters, and, perhaps in the context of later aspects of the clause, clarify the position when there is no intention to damage an MCZ.

Ann McKechin (Parliamentary Under-Secretary, Scotland Office; Glasgow North, Labour)

When I first saw the amendment, I thought back many years ago to when I was studying law at university and the wonderful case from, I think, the 19th century. While a chap was away at sea, a law was changed at Westminster. He came back, went onshore and duly committed the said statutory offence. He gave as a defence the fact that he could not have known about the change in the law. That was absolutely correct. Regrettably, the finding was that ignorance of the law was not an excuse, although it is probably a pretty good plea in mitigation.

To return to the amendment, most activities in the sea are carefully regulated. Some, however, have traditionally been considered to have such a low impact on the environment that there is no need to regulate them. We now know that in some circumstances even these activities can have an adverse impact on conservation objectives—we are talking in the main about recreational activities such as boating, jet skiing, which my hon. Friend the Member for Carmarthen, West and South Pembrokeshire mentioned earlier, and diving. The byelaw provisions for this part of the Bill are intended to enable us to regulate those activities as necessary.

Offences under MMO byelaws will be strict liability offences. We had an interesting discussing on the previous amendment about proof, successful prosecutions and the consequent deterrent effect. This is consistent with treatment of some other offences elsewhere under the Bill such as byelaws made by inshore fisheries and conservation authorities and other legislation for regulatory offences. Examples of possible offences are speeding, anchoring in a prohibited area or taking prohibited species when diving. I entirely understand where the aim of the amendment and the concerns raised by the Royal Yachting Association. We do not want to make criminals of those who take all reasonable steps to comply with the law.

Linda Gilroy (Plymouth, Sutton, Labour)

When the hon. Member for Newbury was making the case for the amendment I could see that he was trying to strike a balance. He drew attention to a certain inconsistency with other parts of the Bill. Rather than reject it outright, would my hon. Friend the Minister take the amendment away and have another look at it?

Ann McKechin (Parliamentary Under-Secretary, Scotland Office; Glasgow North, Labour)

I hope that my later comments will reassure my hon. Friend. If an offence was not clear or a person cannot reasonably have known he was committing the offence, the chances of securing a conviction would be very low. It would be very unlikely to be in the public interest to prosecute. At the same time, we do not think that the Bill is the right place to include due diligence provisions, because it is better addressed through the secondary legislation itself.

The power to make byelaws is broad enough to enable the MMO to provide a due diligence defence in specific byelaws where that is appropriate. Other relevant areas of legislation have already taken this approach. For example, some harbour byelaws and the byelaws for lakes such as Windermere both specify the geographical area in which they apply, similar to the way in which the MMO byelaws will, and contain a due diligence defence. I can tell the hon. Gentleman and my hon. Friend that if a due diligence defence is necessary and appropriate in a byelaw, it will be included. I hope that provides sufficient reassurance for the hon. Gentleman to enable him to withdraw his amendment.

Richard Benyon (Shadow Minister, Environment, Food & Rural Affairs; Newbury, Conservative)

In a sense, the debate on this amendment will be balanced by a debate that we shall shortly have on another amendment. It is important to lay down a marker showing that there are legitimate activities that take place in our seas and that there are industries that we want to encourage for a whole range of reasons. We want to be absolutely certain that we are not creating an unfair and inconsistent law. The Minister made a good point about developing this in secondary legislation. I am nervous about setting that precedent through the Bill, because it is subjective and dependent on all sorts of other factors. However, I shall withdraw the amendment so we can move on to the next debate. I beg to ask leave to withdraw the amendment.

Nick Ainger (Carmarthen West & South Pembrokeshire, Labour)

I beg to move amendment 35, in clause 141, page 96, line 11, at end insert—

‘(c) the act occurred on the seaward side of the 0-6 nautical mile fisheries zone in a location where European vessels have fishing rights.’.

The amendment stands in my name and the names of my hon. Friend the Member for Reading, West and of the hon. Member for Broxbourne. It touches on a very contentious issue that was raised on Second Reading by Members on both sides of the House. The Bill contains a blanket defence for causing damage within an MCZ if that was the result of sea fishing and if there was no reasonable way of avoiding it. I think that everyone was surprised that the Bill contains such a broad defence. Many organisations have contacted us to raise their concerns and have acted constructively to try to address the issue, which is what my amendment, too, seeks to do. We recognise that, at this stage, no substantial changes can be made in areas covered exclusively by the common fisheries policy. However, the amendment, or something similar, would address the situation in inshore fishing areas—the nought to 6 nautical mile zones—and in 6to 12 nautical mile areas with no track record of foreign vessels being allowed to fish.

My amendment might not be worded perfectly, but I think that the Minister understands the need to address the problem. Marine habitats have been drastically damaged by some sea fishing activities. We have mentioned in previous debates the effect of scallop dredging in Cardigan bay, but there are many other examples around the UK of the activities, often not of British fisherman—certainly not of British inshore fishermen—but of fisherman from other countries, that have devastated habitats, not just of other species, but of their target species. Such areas are, in effect, deserts. I could give other examples from around the world, such as the Grand Banks off Newfoundland, where over-fishing removed a whole stock that for centuries provided massive amounts of fish for northern Europe and north America.

My amendment would make it clear that the blanket defence is not acceptable and that sea fishing has to be compliant with the requirements of the MCZs. We could address the problem by limiting the CFP to specific areas. Although the amendment might not be worded perfectly, I hope that the Minister will respond positively.

Andrew George (St Ives, Liberal Democrat)

I want to comment on the primary objective in the identification of an offence. The thinking behind exempting fishing from prosecution might have  been that, given that the purpose of fishing is to target a particular species, or species in a mixed fishery, it would be difficult to prove that damage to a feature or animal within an MCZ was either intentional or the result of reckless behaviour on the part of the people using the fishery. Would the hon. Gentleman like to respond to that in relation to mid-water trawling, for example? He has mentioned scallop dredging, but what about fishing activities such as mid-water trawling, which are clearly intended to target a particular species, but in which there is no intentionality or recklessness to damage an MCZ feature through that activity?

Greg Pope (Hyndburn, Labour)

Order. I gently remind the Committee that interventions must be brief and to the point.

Nick Ainger (Carmarthen West & South Pembrokeshire, Labour)

I appreciate the hon. Gentleman’s point. Certainly, mid-water trawling should not cause problems on the sea bed, but he knows as well as I do that some techniques cause significant damage to the sea bed. Some forms of trawling use a chain, which churns up the surface of the sea bed, causing enormous damage to areas of sea grass and maerl. I accept that certain techniques should not cause damage; they are fine, and are not a problem. It is the techniques that do cause damage that are a problem. The argument about reasonableness is interesting, because, often, alternative techniques could be used. I recently saw a demonstration of people fishing for razor fish, or razor clams—this will be a short digression, Mr. Pope—by passing an electric current over the sea bed. For some reason, that causes them to pop up, and they are then harvested without any damage to the sea bed. There are therefore other techniques for targeting particular species.

Returning to my amendment, we need to address this issue, because the blanket defence is too widely drawn. I am sure that we can come up with a better wording, but if we do not address this issue, we risk undermining the concept of MCZs, because commercial fishing is likely to cause the most damage within them, and if we allow this widely drawn blanket defence, we risk undermining the whole process.

Charles Walker (Broxbourne, Conservative)

I rise to support the amendment. I served on the Joint Committee on the Draft Marine Bill, and it was of great concern to me that while we had the best intentions of conserving marine areas and sites of special scientific interest and protecting them from over-exploitation, we were operating under the aegis of the European common fisheries policy, which would allow European fishermen to continue trawling those areas, creating mayhem and destruction at will.

I am extremely pleased that the hon. Gentleman has tabled the amendment, because we are in a position to protect not only inshore areas—nought to 6 miles from the shore—but areas that are 6 to 12 miles from the shore, where there is no traditional access for European fishery vessels. The Bill currently provides too much of a blanket defence. Anybody who fishes in the marine conservation zones will be able to say, “There is no other method or way that I can do it, but I’m terribly  sorry that I have caused this damage and taken non-target species.” In a sense, one could drive a coach and horses through this piece of legislation. If MCZs are to mean anything, they have to provide sanctuary and safety for the species, plants and corals within them.

Of course, we do not want to create a situation in which nothing can happen in MCZs and no types of fishing can occur in them. We need to ensure that sustainable fisheries that do not cause damage are allowed to continue, because if MCZs are to have the support of the public and the communities who border them, we have to allow those communities to derive some commercial benefit from them. We also have to strike a balance between commercial fishing and low-intensity recreational fishing. It is more than possible for recreational fishing to take place in the areas under discussion without causing damage. Of course, the captains of boats that embark on recreational fishing will need to ensure that their anchors do not drag through areas of special interest and cause damage, but that is manageable. Naturally, anyone who derives a sustainable living from conservation zones will want to ensure their future integrity.

I will not try your patience, Mr. Pope, because I do not want to stray too far from the amendment. If I do, please rule me out of order, but I do not think that I will do so. We accept that MCZs will provide important nursery areas for endangered species. For example, we have a growing bass fishery around our shores, but we need to ensure that there are places where bass can breed in relative safety. There is a danger in that it is difficult to have a nursery area where commercial fishing takes place, because, even though the bass may not be the targeted species, they will end up in the nets of fishing trawlers and will ultimately be discarded. The bass may go back into the sea, but they will be dead. We therefore need to make sure that the MCZs provide nursery areas for endangered species that can then go on to populate the surrounding areas, which will be of benefit to commercial fishermen. The amendment tabled by the hon. Member for Carmarthen, West and South Pembrokeshire therefore offers a win-win situation.

In conclusion, we need to think globally, but act locally. We are globally aware. For example, the hon. Member for Brecon and Radnorshire, which is in south Wales, not New South Wales, is very concerned about whales—that was very tortuous—on all sorts of levels. At a time when the World Wide Fund for Nature and others are bringing to our attention the parlous state of tuna stocks around the world, and the need to protect them and to provide safe areas for them to breed where they cannot be persecuted, it would be a rum deal if this country could not create a few MCZs that provide the necessary levels of protection for our own marine species to breed in safety. As I have said, they will be able breed in safety, the young will grow, and they will then be able to populate the wider area to the benefit of the species, to the benefit of animals that prey on the species and to the benefit of commercial fishermen. I support the amendment, and even if the Government have to go away and think about it, I hope that they will return on Report with something that we can all support.

Alan Whitehead (Southampton, Test, Labour)

If a small plane took off from Southampton airport, flew over the New Forest national park and dropped a large  net in the middle at tree-top height in order to catch pigeons to sell in the restaurants of Southampton, and in doing so uprooted a load of trees and caught thrushes, blue tits and starlings, and then returned to Southampton airport, emptied the catch, discarded all the thrushes, blue tits and starlings, took the pigeons to the restaurants, apologised for the fact that it had uprooted a lot of trees, but said that that had been necessary in order to catch the pigeons, there would be a national outcry. There might also be a headline in the local paper asking why the trees had been uprooted.

That is exactly what we appear to be enabling to happen, in a nautical sense, between nought and 6 miles in MCZs off our shores, but because we cannot see it in the way that I have just described, our attention may not be as concentrated on it. I accept that there are areas outside the 6-mile zone where it is difficult to take action. However, if we can state in the Bill that it is not a defence in the nought to 6-mile zone for someone to say that they churned up the seabed in pursuit of fishing, we will have done something very positive for the sound passage of the Bill.

Even if the wording of the amendment is not exactly right, I urge my hon. Friend the Minister to pay close attention to what it says, because it is right. If he is able today at least to say that he will consider the matter and perhaps return at a later stage of the Bill with something that works as far as the purpose of the amendment is concerned, hon. Members on both sides of the Committee will be reassured that the Bill will be as good as it can be when it reaches the statute book.

Russell Brown (Dumfries & Galloway, Labour)

I rise to support my colleagues and the amendment. However, I can tell you, Mr. Pope, that I will not be as elaborate and descriptive as my hon. Friend the Member for Southampton, Test in making the case. The point that he made is absolutely valid, although obviously we are considering the nautical and marine aspect of what he described. I am anxious about the matter. As other hon. Members said, we must address the issue of a blanket defence. In supporting the amendment, I recognise that it is never easy to convince our good colleagues on the Front Bench that an amendment is 100 per cent. spot-on and that we should win the case. However, if we are sincere and genuine about the value of marine conservation zones, we must ensure that whatever else is in the Bill, we are not doing something that will undermine the very idea behind the Bill.

Certain aspects of the clause seem somewhat anomalous. In view of that, I shall echo the sentiments of my hon. Friend the Member for Southampton, Test and hope that if Ministers do not accept what has been proposed, they will at least take the issue away for further serious consideration, because it is a serious issue.

Andrew George (St Ives, Liberal Democrat)

The amendment clearly implies that the geographical target is between the 6 and 12-mile zone, unless I have misunderstood it, yet many of the comments so far relate to areas within the 6-mile zone. I want to make it clear that we are talking specifically about the 6 to 12-mile zone being affected. I want to understand why the amendment would not deal with any area either within the 6-mile zone or beyond the 12-mile zone.

Russell Brown (Dumfries & Galloway, Labour)

The hon. Gentleman is correct. I shall finish by re-emphasising to the Ministers that if they are not minded to accept the amendment, I sincerely hope that they will take the issue away for further serious consideration at a later stage.

Richard Benyon (Shadow Minister, Environment, Food & Rural Affairs; Newbury, Conservative)

One frustration of the Bill is that we could end up securing and protecting large areas of our seas from our own fishermen, but fishermen with historic fishing rights from abroad will be able to come in and fish more or less as they please. This matter must be seen in the context of CFP reform. We have to reach an understanding across Europe that the only way successfully to manage fisheries is to control them. A much greater degree of control of our seas out to 12 miles must be the ultimate aim of CFP reform as we approach 2012.

One solution that must have crossed Members’ minds would be to remove subsection (4), but I understand why such an amendment has not been moved. I have heard informally that the Minister will say that the clause must remain part of the Bill because its provisions are a fundamental part of European law, and that the Government do not want to contravene it. We want the Government to assure us that they have heard our serious concerns and are taking steps to secure MCZs from the few fishermen who might be inclined to misbehave in those areas. We should not protect our marine areas only from our own fishermen; those from other parts of the EU who enter an MCZ and break the law by damaging the area should be guilty of a criminal offence.

Charles Walker (Broxbourne, Conservative)

Does my hon. Friend agree that if that is not the case, the Bill will be nothing more than a few nice ideas, and that it will remain so? Our fishermen will be forced to sit on their hands, and there will be a great sense of animosity as European vessels plunder the conservation zones.

Richard Benyon (Shadow Minister, Environment, Food & Rural Affairs; Newbury, Conservative)

We must not put all fishermen in the same bracket. We shall come later to an amendment tabled by the hon. Member for St. Ives that refers to coastal communities. Many coastal communities are hanging on by their fingertips, so we should be protecting those people in a vast social endeavour in order to secure their viability.

My hon. Friend the Member for Broxbourne is right that our fishermen could be restrained; they want to fish in an entirely proper fashion, and they want their children and their grandchildren to become fishermen and harvest the seas in a sustainable fashion. The risk is that restrictions are being placed on them, but not on fishermen from abroad with historic fishing rights. It is vital that the Government clarify the matter.

Andrew George (St Ives, Liberal Democrat)

I wish to add a few remarks to this important debate. It is a subject to which I drew attention on Second Reading. We need to balance what we are trying to achieve in the Bill—its primary purpose is the promotion of marine conservation—and ensuring that our coastal communities, particularly those that depend upon the fishing industry for their commercial future, are maintained. It is must be done with care.

The amendment clearly does not address the sentiment expressed by those who are promoting it. From the geographical point of view, if one wants to ensure that fishing is not exempted from the provisions of the clause, the intention—the sentiment—must be to ensure that they are applied as widely as possible. It should go from the coast to the median line, or even out to the 200-mile limit. I understand and entirely sympathise with the sentiment behind the amendment. I am sure that the Minister will say that the CFP would clearly come into play, and a lot of the intentions would need to be achieved through international, member-state-wide, European negotiation. However, simply restricting the measure to the 6 to 12-mile zone, as the amendment would, would be rather odd. Perhaps we will have the opportunity to come back to the issue.

A view that that has underpinned many of the remarks that have been made is that the fishing industry is of one opinion on everything, but there is a lot of conflict among fishermen regarding different techniques. For example, scallop dredging is clearly in conflict with lots of other fishing activities.

Linda Gilroy (Plymouth, Sutton, Labour)

I hope the hon. Gentleman agrees that continental fishermen, like our own fishermen, have a great interest in conservation and they are increasingly co-operating. Does he think that the sort of set-up that we are trying to bring about with the Bill prepares us for those sorts of discussions with other European countries?

Andrew George (St Ives, Liberal Democrat)

I think that that is right. The intention must be to ensure that such negotiations draw out the best views from other member states. Some in the fishing industry say that the use of scallop dredgers and heavy beams is like heavily ploughing an area of land again and again.

Charles Walker (Broxbourne, Conservative)

Does the hon. Gentleman accept that the amendment would allow the promotion of best  practice in MCZs? Perhaps we will have to help certain fishermen to change their methods, and we should support them. Our seas are under huge threat, and if we are to have a voice at international level, we have to be seen to be making progress in those parts of the ocean where we can influence fishing practices.

Andrew George (St Ives, Liberal Democrat)

I agree and have no difficulty with that. When the Minister responds, perhaps this afternoon, I should like some reassurance that we are talking about the provision of byelaws, which are currently available to sea fisheries committees, to police the conflict between different fishing techniques and to take into account the impact of one fishing technique on the marine biodiversity of an area. It is important that the provisions focus on the most destructive and least selective techniques, so we need to look at the clause again.

I return to the point I made in an intervention on the hon. Member for Carmarthen, West and South Pembrokeshire. In bringing fishing within the provision, one has to demonstrate that the activity is reckless or intentionally damaging, which is the most difficult thing to do. Damage to the marine environment is caused by certain fishing activities and techniques, which the fishing industry fully acknowledges, but we need to establish that the intention is to cause damage. I do not think we can do that. It is a worthwhile debate, but I hope it can be balanced.

Huw Irranca-Davies (Parliamentary Under-Secretary (Marine and Natural Environment), Department for Environment, Food and Rural Affairs; Ogmore, Labour)

It has been a worthwhile debate. The issue was raised extensively on Second Reading by a number of Members, and it has now been raised by seven hon. Members in major speeches and interventions in this debate. I understand what they are saying.